Grand jury indicts Concord man in rape case

A Merrimack County grand jury has indicted a Concord man on charges of raping his girlfriend despite the fact that a district court judge ruled in December that there wasn’t enough evidence for the case to go forward.

Merrimack County Attorney Scott Murray declined to discuss the case against 30-year-old Francisco Ulerio but said that in general it’s not uncommon for prosecutors to seek indictments after a judge fails to find probable cause. He said the case is more developed by the time it goes before a grand jury.

But Ulerio’s lawyer, Mark Sisti, noted that the threshold for probable cause is low and said a judge ruled that prosecutors hadn’t met that threshold in December when the evidence showed Ulerio’s innocence.

According to an affidavit in the case, the woman came to the Concord police station in late August 2012 and reported that Ulerio had sexually assaulted her the prior evening. The woman, who told an officer she and Ulerio had recently decided to end their relationship, said she had fallen asleep and woken up to Ulerio pulling the bed sheets and then her clothing off her.

She said Ulerio climbed on top of her despite her protests, telling her that she would have sex with him because that’s what girlfriends are supposed to do.

“(She) said she tried to fight him off as best she could, but he was too strong and there was nothing she could really do,” an officer wrote in the affidavit. “(She) said during the entire incident she had begged him to stop, and she kept (asking) him why he was doing this to her.”

The woman told the officer that after the assault was over, Ulerio forced her to sit next to him on the bed for several hours as he went through her phone and asked her about text messages she had exchanged with another man.

The officer noted in the affidavit that there was “fresh bruising” on the woman’s inner left biceps and said he took several pictures of her injuries.

But Sisti, who said Ulerio fully denies the accusations, said he’s never seen evidence that there was an assault and added that those photos were not used at the probable cause hearing. He said there was evidence at that hearing that the woman sent text messages to another man saying she wanted him to move into her apartment and Ulerio to move out.

Sisti pointed to those conversations as a possible motivation for the woman to make a false report to the police. He also questioned why the woman did not call 911 after the alleged assault and said her actions that evening and the next morning were “contradictory to what a victim in her situation would have acted like.”

“There’s a young child that lives in the apartment as well,” Sisti said. “She didn’t have any problem with Mr. Ulerio being with the young child all the way through the evening up until the point in time that Mr. Ulerio carried the child down to the car, placed her in a child seat just as he did every day. And the day began.”

According to court records, the Merrimack County attorney’s office requested an audio recording of the probable cause hearing earlier this month, after the case had already been presented to a grand jury and the new indictments had been handed down.

“I would have hoped that the county attorney’s office would have reviewed the probable cause hearing recording and in fact would have played portions of it to the grand jury before seeking an indictment in this matter,” Sisti said.

Ulerio has been indicted on two counts of aggravated felonious sexual assault, two counts of attempted aggravated felonious sexual assault and one count of false imprisonment.

In a separate case, he is also facing two counts of driving while intoxicated. According to the charges, he was arrested by a state police officer at about 2:30 a.m. April 6 while driving on Route 3.